In the modern world of smartphones, laptops, and tablets, working outside of the office is effortless. As a result, when the COVID-19 pandemic hit, granting remote work opportunities for employees was the obvious solution for most organizations. While the ability to work remotely has its perks for business, it also can be a source of concern when it comes to calculating overtime expenses. Employees who work from home might find themselves working more flexible hours or working more hours than they would in the office, blurring the line between on-duty hours and overtime.

On-duty Dilemma

It can be difficult to distinguish between when an employee is expected to work versus when an employee voluntarily chooses to work during his or her free time. Allowing employees to work remotely raises considerations of on-call employment where employees may not be present at the workplace but are still expected to respond to a client or colleague’s request at a moment’s notice.

When considering whether an employee is on or off duty, ask yourself, “Was the employee relieved of all duties at the time of his or her own work?” If the answer is yes, then the time is not compensable. If not, then time spent on remote tasks would be considered compensable hours.

The “De Minimis” Doctrine

The de minimis doctrine deals with negligible amounts of work employees perform when they are off duty. The U.S. Supreme Court has reasoned that penalizing small violations is unnecessary and that if an employee’s remote work is de minimis, the employer should not have to worry about compensating the employee.

To decide whether overtime remote work is de minimis, employers should consider whether:

• It would be practical, from an administrative perspective, to record the additional time;
• The aggregate amount of additional remote work is significant; and
• The employee regularly engages in overtime work.

Prevention

To avoid having to pay employees overtime pay for remote work, employers can implement mobile device policies that outline which employees within their company have access to remote work options. Choosing to limit remote connectivity to employees exempt from overtime regulations can help promote FLSA compliance. In addition, employers can monitor work hours and track employee usage of employer-provided mobile devices.

After adopting remote work policies, employers should educate their employees, managers and supervisors on these procedures and on their specific work responsibilities. Employers should also take time during onboarding and training sessions to set clear employee expectations regarding remote and overtime work.

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